Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC 228943. John Shepard Wiley, Jr., Judge.
Frances L. Diaz, in pro. per., for Movant and Appellant.
Waxler Carner Weinreb Brodsky, Andrew J. Waxler and Cynthia D. Kinney for Defendant and Respondent.
ROTHSCHILD, J.
We dismiss this appeal because the notice of appeal was filed before the trial court announced its intended ruling or rendered any ruling at all, thus depriving us of the ability to treat the notice as a valid premature notice of appeal from a subsequently entered order.
BACKGROUND
In September 2005, Frances Diaz appeared in the trial court for a judgment debtor examination. She stated her name and then declared that the judgment in question, which was entered on September 7, 2001, was “void” because the trial court never had jurisdiction to enter an award against her. She refused to answer any questions about her “private life” or “pocketbook.” The trial court (Commissioner Murray Gross) heard and rejected Diaz’s arguments and ordered her “to answer the questions [about her] financial affairs.” She objected again. The court then found that she knew there was a judgment and that there was no stay, and the court again ordered Diaz “to answer the questions.” Diaz refused, and the judgment debtor examination was terminated.
In December, judgment creditor Barry Kaufman applied for an order to show cause re contempt based on Diaz’s refusal to answer questions at her judgment debtor examination. On January 26, 2006, Diaz filed opposition to Kaufman’s application.
Following a hearing held on February 8, 2006, the trial court (Hon. John Shepard Wiley, Jr., who also presided over all subsequent hearings) signed an order to show cause directing Diaz to appear on April 11 (later continued to May 15) to explain “why [she] should not be adjudged in contempt of court and punished accordingly for willfully disobeying the [court’s September 19, 2005, order to answer questions at her judgment debtor examination].”
In March, Diaz filed a special motion to strike the order to show cause pursuant to Code of Civil Procedure section 425.16, contending that it was in substance and effect a cross-complaint against her and that Kaufman had filed the application for the order to deter her exercise of her constitutional right to petition the courts for relief. Kaufman opposed the motion, arguing that the anti-SLAPP statute applies to lawsuits and causes of action, not to an application for an order to show cause or to the order itself.
At the beginning of the May 15 hearing on the order to show cause, the trial court noted the two items then pending, the contempt and Diaz’s special motion to strike, and told the parties they would proceed first with the contempt trial, beginning with the case in chief, after which Diaz would have an opportunity to cross-examine the witnesses and present evidence of her own. Only after the trial on the contempt would the court address Diaz’s special motion to strike. In response, Diaz explained that she had expected her motion to be heard first and that, in the event of an adverse ruling, she would file an appeal from the order denying her special motion to strike, which would automatically stay the contempt proceedings.
The court did not comment on the special motion to strike but offered Diaz a recess so she could call her lawyer. Diaz explained that she did not have a lawyer on standby and again insisted that her motion be heard first. Following a brief recess during which Diaz confirmed that her lawyer was not, in fact available that day, Diaz informed the court that during the recess she had filed a notice of appeal from the trial court’s “implicit denial” of her motion. The court -- having not ruled on her motion or even expressed a tentative ruling -- found that Diaz was “pursuing a tactic of delay,” and by her conduct had “waived [her] right to counsel.”
The court then conducted the evidentiary phase of the contempt trial and found that “there has been proof beyond a reasonable doubt that Ms. Diaz knew of the court order” and had the “physical ability to comply and that she willfully did disobey that court order to disclose her finances. . . . I would impose criminal sanctions depending on Ms. Diaz’s willingness now to submit to another judgment exam in which she answered these questions.” The court granted Diaz’s request to confer with counsel before stating whether she would answer the questions.
Next, the court turned to Diaz’s special motion to strike the order to show cause and denied it on the ground that it was not a valid use of the motion (“the special motion to strike is not designed to shield a party from enforcing a court order”). To give Diaz an opportunity to seek writ review of the contempt finding, the court then continued the proceedings to June 12 (and later to August 14).
Following the August 14 hearing, at which Diaz informed the court she would not respond to the judgment debtor questions, the trial court signed and entered a formal order finding Diaz in contempt of court and sentencing her to jail until she agreed to answer all relevant questions about her financial affairs. She was ordered to surrender on September 11, 2006. On September 5, Diaz asked us for an emergency stay of all proceedings pending this appeal. We issued a stay.
DISCUSSION
Diaz contends her notice of appeal from the trial court’s “implicit denial” of her special motion to strike deprived the trial court of jurisdiction to proceed with the order to show cause re contempt. Because there was no order made or tentative ruling given, the notice of appeal is premature and cannot be saved by treating it as an appeal from the order entered after the contempt trial.
Although we will treat as timely a notice of appeal filed after a judgment or order is rendered but before it is entered (Cal. Rules of Court, rule 8.104(e)(1); Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 413-414, fn. 7), and although we have discretion to treat as timely a notice of appeal filed after the trial court has announced its intended ruling but before it has rendered a judgment or order (Cal. Rules of Court, rule 8.104(e)(2); Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 333, fn. 3), a notice of appeal filed before announcement of the court’s intended ruling cannot be treated as a premature or timely notice of appeal. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 3:55.5, p. 3-24.)
Diaz’s appeal must be dismissed because the trial court did not rule or express an intended ruling before Diaz filed her notice of appeal. The court said repeatedly that it intended to proceed first with the contempt trial and to address the anti-SLAPP motion later, and that is precisely what the court did.
We express no opinion on the validity of the contempt order or the validity of the underlying order issued by Commissioner Gross.
DISPOSITION
The appeal is dismissed, and our stay order is dissolved as of the date this opinion becomes final. Kaufman is awarded his costs of appeal.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
CONCURRING
VOGEL, Acting P.J.
I agree that the appeal must be dismissed because the notice of appeal was filed before the trial court announced its intended ruling or rendered any ruling at all -- but in my view the circumstances of this litigation and the claims made by the appellant (particularly her reliance on Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186, which isn’t even mentioned in the majority opinion) demand more than the cursory explanation provided by my colleagues.
BACKGROUND
A.
In 1999, Sheila G. Moore, M.D., a shareholder and employee of the Cedars-Sinai Imaging Medical Group, obtained a writ of mandate to enforce her right to inspect the Group’s books and records. Moore was represented by Frances L. Diaz, the Group by Barry B. Kaufman. At about the same time, the Group fired Moore, who contested her termination and lost, and was ordered by an arbitrator to pay the Group’s attorney’s fees, about $111,000.
In 2000, Moore returned to court for an order to show cause re contempt, claiming she had not been permitted to examine the Group’s books and records. Although an order to show cause was never issued, the trial court (Hon. David P. Yaffe) conducted a “default” contempt hearing, found the Group in contempt, imposed a $1,000 fine, and ordered the Group to pay Moore’s attorney’s fees, about $45,000. The court thereafter found that the contempt had been purged by the Group’s compliance with the production order but refused to vacate the fee order. In response to the Group’s petition for a writ of mandate, we held that the trial court had no jurisdiction to do what it did and that the orders, including the fee order, were void. (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281 [Diaz I].) We also held that, based on “the undisputed fact of full compliance” with the order to produce, the “matter [was] concluded” and there was “no need to consider whether . . . Moore would be entitled to renew her request for an order to show cause re contempt.” (Id. at p. 1288.) We denied Moore’s petition for rehearing and the Supreme Court denied her petition for review. (Ibid.)
B.
In February 2001, Moore (represented by Diaz) re-filed her application for an order to show cause re contempt. At a hearing held in March, Diaz told the trial court (Hon. Dzintra Janavs) that our opinion in Diaz I put “the parties back into the situation they were in before the void orders were issued,” that a new order to show cause should issue, and that (notwithstanding the Group’s compliance with the production order) a new contempt hearing should be held (presumably so Moore could recoup the attorney fee award she lost in Diaz I). The Group (represented by Kaufman) disagreed and so did Judge Janavs, who refused to permit Moore to pursue the contempt. We rejected Moore’s challenges to that order and affirmed it. (Moore v. Cedars-Sinai Imaging Medical Group (June 27, 2002, B149844) [nonpub. opn.] [Diaz II].)
C.
Meanwhile, the trial court (Hon. Patricia L. Collins) entered a defense judgment confirming the arbitrator’s award in the proceeding in which Moore had contested her termination. Moore (represented by Diaz) appealed from that judgment and from an order denying her motion to vacate that judgment. The Group (represented by Kaufman) responded that the appeal was untimely and in any event meritless. We agreed with the Group, dismissed the appeal as untimely (but explained that we would in any event have affirmed), and awarded costs (including contractual attorney’s fees) to the Group in an amount to be determined by the trial court. (Moore v. Cedars-Sinai Imaging Medical Group (Oct. 29, 2002, B145869 [nonpub opn.] [Diaz III].)
D.
In October 2000, Moore (represented by Diaz) sued the Group for gender discrimination allegedly arising from the same facts adjudicated in the arbitration proceeding. At the request of the Group (represented by Kaufman), the trial court (Hon. Haley J. Fromholz) ordered the case to arbitration, an order challenged by Moore in a petition for a writ of mandate which we summarily denied. (Moore v. Superior Court (Mar. 27, 2001, B148587) [Diaz IV].)
E.
While the proceedings described in Diaz III and Diaz IV were pending and Diaz and Kaufman were in court on one of those matters, there was some sort of confrontation in the hallway. Diaz accused Kaufman of harassment and assault, and they obtained conflicting declarations from a court security guard, Steven Baldwin. Baldwin (represented by Diaz) then sued Kaufman and the Group for interference with contract and fraud, claiming Baldwin had been fired from his job for giving a false declaration to Kaufman. Diaz sent the complaint to Kaufman along with a cover letter in which she demanded that he “disqualify [himself] from any further representation of [the Group] in light of the patent conflict of interest.”
After Baldwin admitted at his deposition that he was an at-will employee of the security company that provided services to the court, and that Diaz was representing him on a “pro bono” basis, Kaufman and the Group moved to strike Baldwin’s complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The trial court (Judge Fromholz) granted the motion and entered a judgment of dismissal. Baldwin (represented by Diaz) appealed. We affirmed (Baldwin v. Kaufman (Apr. 1, 2003, B152778 [nonpub. opn.] [Diaz V]) and the Supreme Court denied Baldwin’s petition for review.
All section references are to the Code of Civil Procedure.
F.
In 2000, Moore (represented by Diaz) sued Kaufman for intentional interference with her employment contract with the Group, but did not serve Kaufman with the summons or the complaint. When the trial court set a status conference for October, Moore dismissed her complaint without prejudice.
In April 2001, Moore filed an ex parte application for an order vacating her voluntary dismissal of her action against Kaufman and for leave to serve the complaint. The trial court (Hon. J. Stephen Czuleger) denied the ex parte application and ordered Moore to proceed by way of a noticed motion. Moore then filed a motion -- but did not serve it on Kaufman and instead served another lawyer who (along with Diaz) was representing Moore. In Kaufman’s absence, Judge Czuleger granted Moore’s motion and reinstated the action. Moore filed and served a first amended complaint, thus informing Kaufman of the existence of this action and of the order relieving Moore from her dismissal -- and triggering Kaufman’s motion for reconsideration on the ground that Diaz had concealed from the court the fact that he had not been served with the motion to vacate the dismissal, or with the notice of the order granting that motion. On July 10, Kaufman filed a special motion to strike the first amended complaint. (§ 425.16.)
From this point on, Kaufman was represented by counsel.
Moore then filed a second amended complaint in which (in addition to her claim of intentional interference with contract) she charged Kaufman with legal malpractice, breach of fiduciary duty, breach of contract, and fraud by concealment. Kaufman filed a new special motion to strike addressing the second amended complaint and (in the notice of motion as well as his memorandum of points and authorities) expressly sought fees and costs from “plaintiff Moore and her attorney of record . . ., Frances L. Diaz, Esq., jointly and severally.” Emphasis added.) On August 8, 2001, over Moore’s opposition, Judge Czuleger granted Kaufman’s motion for reconsideration, finding that Diaz’s “intent was to mislead the court. [Diaz] was ordered [in April 2001] to file and serve a noticed motion [and she] clearly had knowledge of [Kaufman’s] address to give notice.” Judge Czuleger nevertheless deferred the issue of dismissal to September 7, the date set for hearing on Kaufman’s special motion to strike.
On August 14, Moore applied ex parte for an “order restoring [the legal malpractice] case to its dismissed status,” claiming the court lacked jurisdiction to grant her earlier motion to reinstate the case because the order of dismissal had been entered at her request. Judge Czuleger denied Moore’s ex parte application and set the matter for hearing on September 27. On August 15, Moore applied ex parte for an order staying the September 7 hearing on Kaufman’s motion to strike until after the September 27 hearing. Judge Czuleger denied her application, and we summarily denied her petition for relief from that order. (Moore v. Superior Court (Aug. 29, 2001, B152392) [Diaz VI].)
On September 7, Judge Czuleger granted Kaufman’s special motion to strike, dismissed Moore’s action with prejudice, awarded attorney’s fees and costs to Kaufman as the prevailing party, found that these orders constituted an “adjudicat[ion] on [the] merits” of the action within the meaning of section 425.16, denied Kaufman’s request for an order to show cause re contempt against Diaz, and deemed the relief sought by Kaufman’s motion for reconsideration moot. A judgment of dismissal was entered the same day, awarding fees and costs to Kaufman, payable jointly and severally by Moore and Diaz (the amount, about $42,000, was interlineated later by Judge Czuleger as explained in Part H, post). Notice of entry of the judgment, with the judgment attached, was served by mail on Diaz the same day and filed on September 10. Moore, but not Diaz, filed a notice of appeal from that order. We affirmed, and awarded costs to Kaufman, including attorneys’ fees in an amount to be determined by the trial court. (Moore v. Kaufman (Apr. 24, 2003, B154357) [nonpub. opn.] [Diaz VII].) The Supreme Court denied Moore’s petition for review.
G.
On February 6, 2003, almost 18 months after the September 7, 2001 judgment was entered (and about two months before we filed our opinion rejecting Moore’s appeal from that judgment), Diaz filed a notice of appeal from two “post-judgment” orders issued by Judge Czuleger, one entered on January 22, 2003, denying Diaz’s motion to “correct” the September 7, 2001 judgment by deleting all references to her (she claimed she was included by reason of a “clerical error”), the other entered on February 5, 2003, granting Kaufman’s motion for sanctions ($3,000) payable by Diaz and Moore for their frivolous efforts to block his attempts to collect his judgment. We rejected Diaz’s arguments and affirmed the orders. (Moore v. Kaufman (Feb. 3, 2005, B165018 [nonpub. opn.] [Diaz VIII].) The Supreme Court denied Diaz’s petition for review.
Diaz claimed the February 2003 sanction order was void because the court had lost jurisdiction over the legal malpractice case on October 16, 2000, the date on which she voluntarily dismissed that action, simply ignoring the fact that the action was thereafter reinstated at her request. (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21-22 [“[e]ven after a voluntary dismissal with prejudice has been filed, the trial court has jurisdiction to vacate the judgment of dismissal under . . . section 473”].) She also claimed that Kaufman’s special motion to strike had not sought fees or costs from her, only from Moore, and that the reference to her in the September 7, 2001 judgment was a “clerical error.” As noted above and as we explained in Diaz VIII, her argument failed because Kaufman most certainly did seek fees and costs from Diaz as well as from Moore and because, “[w]hen Diaz filed her opposition to Kaufman’s [special] motion to [strike], she had the opportunity to raise as many arguments as she had about her personal exposure for fees and costs. That she chose not to do so was her decision, not Kaufman’s, and she will not now be heard to complain that he somehow deprived her of her due process rights or otherwise obtained the benefit of an erroneous ruling. She crafted her theory of the case and she is stuck with it.” (Diaz VIII, typed opn., pp. 10-11, fn. 3.) As we also noted, Diaz -- who filed a timely notice of appeal on Moore’s behalf -- did not file a notice of appeal from the September 7, 2001 judgment for herself, notwithstanding that she knew the judgment made her jointly liable for the award of fees and costs.
H.
Meanwhile, at a hearing held on January 8, 2002 (at which Diaz was present), Judge Czuleger fixed the amount of fees ($33,338.75 plus $6,257.50) and costs ($1,627.50) payable by Moore and Diaz under the September 7, 2001 judgment, and wrote the amounts on the judgment by interlineation. Kaufman then initiated post-trial discovery and collection efforts against both Moore and Diaz (no bond had been posted to stay the two then-pending appeals, Diaz VII and Diaz VIII). Later (in April 2004), Kaufman filed a motion for an award of attorney’s fees incurred in enforcing the judgment, and for accrued interest. Diaz opposed the motion, claiming among other things that the September 7, 2001 judgment had been improperly altered (by the trial court’s interlineation of the amount of the fee award) and that the judgment was void for the reasons rejected on her prior unsuccessful appeals. The trial court rejected Diaz’s claims, granted Kaufman’s motion, and ordered Diaz to pay $131,635.14 to Kaufman for his attorney’s fees and costs incurred to enforce the $42,000 judgment of dismissal. Diaz appealed, contending the orders were invalid because the underlying judgment was invalid. We affirmed and awarded Kaufman his costs of appeal, including $2,500 for attorney’s fees. (Moore v. Kaufman (Jan. 31, 2006, B176537) [nonpub. opn.] [Diaz IX].) The Supreme Court denied review. (Moore v. Diaz (Apr. 19, 2006, S141945.)
I.
Which brings us to this appeal, Diaz X.
1.
In September 2005, while Diaz’s appeal in Diaz IX was pending (no bond had been posted), Diaz appeared in the trial court for a judgment debtor examination. She stated her name, then declared that the judgment Kaufman was attempting to enforce was “void” because the trial court had “never acquired jurisdiction to make any order against her for costs.” She refused to answer any questions about her “private life” or “pocketbook.” The trial court (Commissioner Murray Gross) heard and rejected Diaz’s arguments, then ordered her “to answer the questions [about her] financial affairs.” She objected again, and was heard again, after which the court found that she knew there was a judgment and that there was no stay, then ordered Diaz “to answer the questions . . . .” Diaz refused and the judgment debtor examination was terminated.
In December, Kaufman applied for an order to show cause re contempt based on Diaz’s refusal to answer questions at her judgment debtor examination. On January 26, 2006, Diaz filed opposition to Kaufman’s application, contending the trial court lacked jurisdiction to issue an order to show cause because the validity of the September 2001 judgment was the subject of a then-pending appeal. On January 31, we filed our opinion in Diaz IX, affirming the September 2001 judgment.
Following a hearing held on February 8, 2006, the trial court (Hon. John Shepard Wiley, Jr., also presided over all subsequent hearings) signed an order to show cause directing Diaz to appear on April 11 (the hearing was later continued at her request to May 15) to explain “why [she] should not be adjudged in contempt of court and punished accordingly for willfully disobeying the [court’s September 19, 2005 order to answer questions at her judgment debtor examination].” The same day, Kaufman served the order to show cause on Diaz by personal delivery at the courthouse.
2.
In March, Diaz filed a special motion to strike the order to show cause (§ 425.16), contending the order to show cause was in substance and effect a cross-complaint against her, and that Kaufman had filed the application for the order to deter her exercise of her constitutional right to petition the courts for relief. Kaufman opposed the motion, pointing out that the anti-SLAPP statute applies to pleadings and causes of action, not to an application for an order to show cause or to the order itself.
3.
At the beginning of the May 15 hearing on the order to show cause, the trial court noted the two items then pending, the contempt and Diaz’s special motion to strike, and told the parties they would proceed first with the contempt trial. The court advised Diaz of her rights. In response, Diaz commented that (notwithstanding our opinion and the Supreme Court’s order denying review), Diaz IX was not final because she still had “a constitutional right to seek review from the United States Supreme Court which [she] fully intend[ed] to do if it be[came] necessary.” She went on at some length, insisting that she was not a party to the September 2001 judgment and suggesting to the trial court that it not “give weight to a facially void judgment.” The trial court told her they were there that day to determine “whether [she] knowingly violated a court order . . . .”
The court told the parties they would proceed with the case in chief, after which Diaz would have an opportunity to cross-examine the witnesses and present evidence of her own. Diaz responded thus: “I advised my criminal law attorney that I was proceeding with a motion to strike this morning, and based upon that representation . . ., he felt that I would go forward . . . first before the [contempt] is heard . . . . I am prepared to argue the motion to strike . . . .” She then explained that, in the event of an adverse ruling, she would appeal from the order denying her special motion to strike, and that her appeal would automatically stay the contempt proceedings. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 186 [the perfecting of an appeal from an order denying a special motion to strike “automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion”].)
The court did not comment on the special motion to strike but offered Diaz a recess so she could call her lawyer (reminding her that the matter had been on calendar for months and had been continued to that date at her request). Diaz then admitted that she did not have a lawyer on standby and again insisted that her motion be heard first. Following a brief recess during which Diaz confirmed that her lawyer was not available that day -- he was “thunderstruck,” she said, and told her she could construe the trial court’s comments “as an implicit denial of [her] motion . . . .” Having apparently come to court prepared for just this result, Diaz went on to explain that she had (during the recess) filed a notice of appeal from the trial court’s “implicit denial” of her motion. The court -- having not ruled on her motion or even expressed a tentative ruling -- found that Diaz was “pursuing a tactic of delay,” and by her conduct had “waived [her] right to counsel” (she does not claim otherwise on this appeal).
Diaz’s typed (not handwritten) notice of appeal states: “Notice is hereby given that Frances L. Diaz, . . . the accused or ‘cross-defendant’ in the separately filed cross-complaint brought by Barry B. Kaufman, arising from the September 7, 2001 Judgment in the underlying case, appeals the May 15, 2006 denial of her motion to strike filed pursuant to . . . section 425.16.”
4.
The court then proceeded to the evidentiary phase of the contempt trial and found, at the end, that “there is proof beyond a reasonable doubt that Frances Diaz knew of the court order and had the physical ability to comply and willfully disobeyed the court order to disclose her finances. . . . I would impose criminal sanctions depending on Ms. Diaz’s willingness now to submit to another judgment exam in which she answered the questions.” The court granted Diaz’s request to confer with counsel before stating whether she would then answer the questions.
Then, and only then, did the court turn to Diaz’s special motion to strike the order to show cause -- and deny it on the ground that it was not a valid use of the motion (“the special motion to strike is not designed to shield a party from enforcing a court order”). The court reiterated its view that Diaz’s sole purpose in filing the motion was to “forestall the evidentiary hearing” but, to give her an opportunity to seek writ review of the contempt finding (she never did), continued the proceedings to June 12 (and later to August 14).
Following the August 14 hearing (at which Diaz informed the court she would not respond to the judgment debtor questions), the trial court signed and entered a formal order finding Diaz in contempt of court and sentencing her to jail until she agreed to answer all relevant questions about her financial affairs. She was ordered to surrender on September 11, 2006. On September 5, Diaz asked us for an emergency stay of all proceedings pending this appeal. We issued a stay.
DISCUSSION
Diaz did not seek writ review of the order of contempt. (§§ 1222 [a judgment of contempt is final and conclusive]; 904.1, subd. (a)(1) [an appeal may not be taken from a judgment of contempt made pursuant to section 1222]; Eisenberg, Horvitz & Wiener, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) Appealability and Standing to Appeal, §§ 2:29 to 2:30, p. 2-20; John Breuner Co. v. Bryant (1951) 36 Cal.2d 877, 878 [review of contempt is by certiorari].) Instead, she has pursued her purported appeal from the “implied” order denying her special motion to strike, contending the order to show cause was subject to attack by a special motion to strike made pursuant to section 425.16, and that her notice of appeal from the “implied” denial of that motion deprived the trial court of jurisdiction to try the merits of the contempt charge. Although I agree that the appeal must be dismissed, I believe Diaz is entitled to better explanation from us about the problems with her appeal.
I.
Diaz contends her notice of appeal from the trial court’s “implicit denial” of her special motion to strike deprived the trial court of jurisdiction to proceed with the order to show cause re contempt. Because there was no order made or tentative ruling given, I agree with the majority that the notice of appeal is premature and cannot be saved by treating it as an appeal from the order entered after the contempt trial.
A.
Diaz filed her notice of appeal before the contempt trial because she wanted the benefit of the automatic stay triggered by an appeal from an order denying a special motion to strike under the anti-SLAPP statute. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 186 [the perfecting of an appeal “from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action by the motion”].) Diaz’s problem with regard to this appeal is that, at the time she filed her notice of appeal, the trial court had not expressed so much as a tentative ruling on her special motion to strike, let alone actually ruled on that motion -- and there is nothing in Varian to suggest that a notice of appeal filed before the court issues a ruling on the motion operates as a stay, or that a party may unilaterally transform a court’s deferred ruling into an implied order.
B.
More to the point and as the majority explains, we cannot treat Diaz’s notice of appeal as a premature but valid notice.
Although we will treat as timely a notice of appeal filed after a judgment or order is rendered but before it is entered (Cal. Rules of Court, rule 8.104(e)(1); Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 413-414, fn. 7), and although we have discretion to treat as timely a notice of appeal filed after the trial court has announced its intended ruling but before it has rendered a judgment or order (Cal. Rules of Court, rule 8.104(e)(2)), Irving Nelkin & Co. v. South Beverly Hills Wilshire Jewelry & Loan (2005) 129 Cal.App.4th 692, 699, fn. 5), a notice of appeal filed before announcement of the court’s intended ruling cannot be treated as a premature or timely notice of appeal. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961; Eisenberg, Horvitz & Wiener, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) Notice of Appeal and Cross-Appeal, § 3:55.5, p. 3-24.) The majority says all this.
But this too must be said. It is not that the court found the anti-SLAPP motion frivolous or insubstantial or untimely (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4that pp. 195, 200) or even suggested that it might be any of those things. To the contrary, the court said repeatedly that it intended to proceed first with the contempt trial and that is precisely what it did. And it is not as though Diaz was without a remedy. Had she genuinely believed she had a right to challenge the contempt charge by means of a special motion to strike under section 425.16 and a concomitant right to have that challenge heard before the contempt was tried, she should have sought our intervention at that time by way of a petition for a writ of mandate (§ 1085; Burnett v. Superior Court (1974) 12 Cal.3d 865 [writ of mandate compelling trial court to rule on a motion to dismiss a criminal action]) or a writ of prohibition (§ 1102; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287-291 [prohibition is available to remedy jurisdictional defects]; Eisenberg, Horvitz & Wiener, Cal. Practice Guide: Civil Appeals and Writs, supra, Writs, § 15.62, p. 15-37).
II.
Were I to reach the merits of Diaz’s appeal, I would have held that section 425.16 applies to pleadings and causes of action, not to applications for orders to show cause or to orders to show cause themselves. Again, given the history of this litigation, I think this is something the parties should be told.
All of the emphasis within quoted materials is added, not part of the original.
Section 425.16 was adopted to curb “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” (§ 425.16, subd. (a)) and, to that end, to provide a procedure for the early dismissal of “‘strategic lawsuits against public participation.’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85; U.S. ex rel. Newsham v. Lockheed Missiles (9th Cir. 1999) 190 F.3d 963, 970-971 [the hallmark of a “SLAPP suit” within the meaning of California’s anti-SLAPP statute is that it lacks merit and is brought with the goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation to the point that the citizen party’s case will be weakened or abandoned, and of deterring future litigation].) The special motion to strike authorized by section 425.16 applies to a “cause of action” asserted in “the pleadings” (§ 425.16, subds. (b)(1), (b)(2)), and may be made within 60 days of service of the “complaint, ” which includes a cross-complaint and a petition. (§ 425.16, subds. (f), (h).) “Pleadings” allowed in civil actions are “complaints, demurrers, answers, and cross-complaints.” (§ 422.10.)
Although Diaz sometimes says her anti-SLAPP motion was directed at the affidavit in support of Kaufman’s application for an order to show cause, she at other times says her motion was directed to the order to show cause itself. Motions and orders are not pleadings. (§ 1003 [“Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion”].)
Nothing in section 425.16 or its legislative history supports the notion that the statute applies to a court order or to an application for a court order (be it an order to show cause re contempt or any other order). For this reason alone, I would reject Diaz’s unsupported assertion that the affidavit filed in support of Kaufman’s application for an order to show cause should be treated as a cross-complaint subject to attack under section 425.16. (See also §§ 425.17, 425.18; cf. Thomas v. Quintero (2005) 126 Cal.App.4th 635, 652-543 [an application for a temporary restraining order is not a “cause of action” or a pleading under the anti-SLAPP statute].)
B.
Diaz’s suggestion that the affidavit in support of Kaufman’s application for the order to show cause is the “substantial equivalent” of a cross-complaint is wrong. Kaufman’s application and its supporting affidavit do no more than recite the facts necessary to show that, pursuant to the September 2001 judgment and the post-judgment order, Diaz owed money to Kaufman; that Kaufman duly noticed Diaz’s judgment debtor examination; that Diaz refused to answer questions about her finances, and continued to do so after the court ordered her to answer. These papers do not allege a cause of action.
With some irony, I note that Kaufman followed the procedure outlined in Diaz I: “[An indirect] contempt proceeding is commenced by the filing of an affidavit and a request for an order to show cause. (§ 1211, subds. (a), (b).) After notice to the opposing party’s lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth. [Citations.] The order to show cause acts as a summons to appear in court on a certain day and, as its name suggests, to show cause why a certain thing should not be done. [Citation.] Unless the citee has concealed himself from the court, he must be personally served with the affidavit and the order to show cause . . . .” (Diaz I, supra, 83 Cal.App.4th at p. 1286, fns. omitted.) The papers generated in compliance with these rules are not pleadings.
We noted the archaic language of the contempt statutes in Diaz I, supra, 83 Cal.App.4th at page 1286, footnote 5, and I note it again here. It is true, as Diaz contends, that some cases refer to the affidavits in indirect contempt proceedings as complaints, and the citee’s affidavit as the answer or plea. (See Hutton v. Superior Court (1905) 147 Cal. 156, 159 [describing the affidavit in support of the order to show cause as a complaint]; Freeman v. Superior Court (1955) 44 Cal.2d 533, 536 [speaking figuratively of the affidavit by saying it “constitutes the complaint” but making it clear that a “contempt proceeding is not a civil action but is of a criminal nature even though its purpose is to impose punishment for violation of an order made in a civil action”].) Be that as it may, section 422.10 limits the use of the word “pleadings” to complaints, demurrers, answers, and cross-complaints -- and section 425.16, added in 1992 (Stats. 1992, ch. 726, § 2, p. 3523), must be read to conform to section 422.10, not to archaic language from cases from the last century. Moreover, the contempt statutes tell us that “an affidavit . . . of the facts constituting the contempt” is used to initiate an indirect contempt, not a complaint or any other form of pleading. (§§ 1211, subd. (a), 1211.5.)
C.
Every reported decision addressing section 425.16 arises from a special motion to strike a complaint, a cross-complaint, or a petition -- not an application for an order to show cause or anything remotely akin to it. (E.g., Flatley v. Mauro (2006) 39 Cal.4th 299 [complaint]; Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1 [cross-complaint]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658 [complaint]; Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572 [complaint]; Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 909 [complaint]; Blackburn v. Brady (2004) 116 Cal.App.4th 670 [complaint]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624 [complaint]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 [complaint]; A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply (2006) 137 Cal.App.4th 1118, 1124 [complaint]; Globetrotter Software v. Elan Computer Group (N.D. Cal. 1999) 63 F.Supp.2d 1127 [federal counterclaim]; City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43 [cross-complaint]; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141 [cross-complaint]; Kajima Engineering and Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 [cross-complaint]; eCash Technologies, Inc. v. Guagliardo (C.D. Cal. 2000) 136 F.Supp.2d 1056 [counterclaim]; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 314-315 [amended complaint]; Visher v. City of Malibu (2005) 126 Cal.App.4th 364 [petition for writ of mandate]; San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343 [petition for writ of mandate]; City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606 [petition for injunctive relief against civil harassment]; Thomas v. Quintero, supra, 126 Cal.App.4th at p. 642 [statute applies to civil harassment petition for injunctive relief brought under section 527.6 because it is a cause of action, but not to proceeding under subdivision (c) of section 527.6 which is limited to determining whether the plaintiff is entitled to a temporary restraining order].)
In refusing to apply the anti-SLAPP statute to a temporary restraining order under the civil harassment statute, the court in Thomas v. Quintero explained that a request for a temporary restraining order “is simply an ‘application.’ It does not qualify as a ‘cause of action’ under the anti-SLAPP statute as it is not a ‘claim’ (§ 426.16, subd. (b)(3)), ‘complaint’ (§ 425.16, subd. (f)), ‘action’ (§ 425.16, subd. (c)), ‘cross-complaint’ or ‘petition’ (§ 426.16, subd. (h)).” (Thomas v. Quintero, supra, 126 Cal.App.4th at p. 652.)
I am satisfied beyond a doubt that the Legislature did not intend the anti-SLAPP statute to apply to an application for an order to show cause for contempt or, in fact, to anything other than a garden-variety pleading such as a complaint, cross-complaint, or petition. Although I do not usually respond favorably to floodgate arguments, I consider it noteworthy in this instance that acceptance of Diaz’s interpretation of section 425.16 would mean every contempt proceeding could be delayed for a year or more by the filing of a frivolous special motion to strike followed by a notice of appeal and a stay under Varian, and virtually every motion seeking affirmative relief (certainly those supported by affidavits) could be opposed by a special motion to strike. To state the proposition is to demonstrate its absurdity.
In short, I agree with the trial court’s finding that the “special motion to strike is not designed to shield a party from enforcing a court order,” and that Diaz’s sole purpose in filing the motion was to “forestall the evidentiary hearing” on the order to show cause re contempt.